Brain-dead finding for Calif. girl may test unique N.J. law

If Jahi McMath is at a New Jersey hospital, as one TV-news station reported last week, the 13-year-old Oakland, Calif., girl would be in the “best destination” for a patient declared brain dead, a medical expert said.

The move from the Golden State to the Garden State would be a logical one, according to Arthur Caplan, director of the division of medical ethics at New York University’s School of Medicine. While California law allows for reasonable accommodations for brain-dead patients to be made — usually giving time for relatives to arrive to say goodbye — New Jersey goes a step further.

It is the only state, Caplan said, with a law requiring hospitals to accommodate brain-dead patients who belong to a religion that does not accept the diagnosis as a final verdict of death.

And it appears McMath’s case could be the first to test the law, though it is not clear if it would satisfy it, he said.

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“As far as I’ve been able to tell, no one knows if anyone has ever used it,” said Caplan, who has followed McMath’s case and researched the 1991 law. “You’d probably have to show you belong to a church that doesn’t accept brain death, or a religious group. But all that said, New Jersey … is the best destination.”

Six months after the teen was declared brain dead, KPIX-TV in San Francisco reported that she is at St. Peter’s Children’s Hospital in New Brunswick, N.J. Successful court battles and negotiating on the part of the family’s attorney, Christopher Dolan, allowed the family to take the unusual step of moving McMath out of UCSF Benioff Children’s Hospital Oakland, where she was declared brain dead after going into cardiac arrest following tonsil surgery Dec. 9.

The teen left the hospital in an ambulance Jan. 5, and her whereabouts have not been publicly revealed since. Dolan declined to confirm if McMath is at St. Peter’s, as did a hospital spokesman. Dolan did say that the teen’s condition has improved since leaving Oakland.

“I have seen much more movement in Jahi, response to her mother’s touch and voice, and what appears to be movement in response to voice command,” Dolan said. “But I am not a doctor and there may be explanations for this dramatic difference in her presentation.”

Dolan said the family might ask for a fourth test to determine if she has brain activity. The first three — including one by an independent physician — found that she had no brain function.

Wade Smith, director of the neuroscience intensive-care unit at UCSF, said it is possible for brain-dead patients to have muscle spasms, but not to respond to commands. Smith said he knows of no recorded cases of a brain-dead patient recovering brain function.

“If there is response to stimulation that is not reflexive and that was validated by a neurologist with expertise, then I think it’s a very important case to document and show the rest of the world,” Smith said. “I would be very interested in seeing the results of that evaluation. Short of that, I would be skeptical that the claims are accurate.”